Disciplining an employee is an uncomfortable task for most employers. Not only do they have to be concerned about the employee’s reaction (let’s face it, most of us are uncomfortable with confrontation), but if the process is not managed correctly, it could also lead to a claim in the Employment Tribunal. Now that the hefty fees which employees had to pay to bring a claim have been declared unlawful, it is easier for an employee to bring such a claim.
Disciplinary action is often necessary, however. If a disciplinary issue is ignored or left to fester, employers risk damage to their reputation and productivity. In addition, an unresolved issue or difficult staff member can bring down the morale of an entire team. It could even lead to frustrated colleagues considering whether their futures lay elsewhere.
Knowing how to handle a disciplinary issue appropriately will provide you with confidence when dealing with difficult workers, and give you the best chance of ensuring such problems are nipped in the bud before they escalate.
Why is a disciplinary hearing held?
A disciplinary hearing may be necessary when an employee has committed an act (or acts!) of misconduct. First, however, an employer will need to carry out a thorough investigation into the apparent misconduct, before they decide whether any further action is necessary.
Carrying out a proper investigation is crucial. In fact, it is essential that an employer follows the appropriate procedure throughout the whole disciplinary process – if they don’t, this alone could mean a claim for unfair dismissal could succeed.
What is the Acas Code of Practice on Disciplinary and Grievance Procedures?
Employers need to be aware of the Acas Code of Practice on Disciplinary and Grievance Procedures (the Code).
The Code sets out the steps an employer should take when conducting either a disciplinary or grievance process.
Although the Code is not compulsory, it is strongly advisable to follow it – if an employee makes a claim in the Employment Tribunal for unfair dismissal, the Tribunal will check whether the employer has followed the Code. If they haven’t, the Employment Tribunal could increase the employee’s compensation by up to 25%.
If you have your own internal disciplinary policy (which is likely to mirror the Code in many areas), then you must make sure you follow this too.
How to arrange a disciplinary hearing
The employee must be given formal, written notification of the disciplinary hearing. You should allow reasonable time between sending the letter and holding the meeting, to give the employee a chance to prepare.
The written notification must provide:
- The allegations against the employee, with enough detail to allow them to understand the allegations and be able to respond.
- Any evidence you intend to rely on.
- Details of the possible disciplinary sanctions that might be imposed after the hearing (including dismissal – where that is a possible outcome).
- The date, time, and venue of the hearing.
- The name of the person conducting the hearing and anyone else that will be present.
- The employee’s right to be accompanied (this can be a work colleague or trade union representative).
It is advisable to set out the nature of the allegations objectively and unemotionally, to avoid suggestions that you have decided the likely outcome before the hearing has been held.
The hearing itself will allow an employer to go through the findings of the investigation with the employee, and allow the employee to provide their version of events.
An employer should ensure the disciplinary hearing is conducted in a fair and consistent manner. To achieve this, an employer should bear in mind:-
- The employee has the right to accompanied. Even though an employer should have informed the employee of this when inviting them to the meeting, an employer may wish to remind an employee of this right if they have attended unaccompanied.
- The employee should be allowed to respond to the allegations, ask questions and discuss the evidence.
- If the employee is accompanied, the companion should be permitted to make statements and ask questions on the employee’s behalf. You do not have to allow them to answer questions that are put to the employee directly however.
- Disciplinary hearings can be stressful. It might be prudent to allow short breaks, particularly if the hearing becomes lengthy or difficult.
- Before finishing the meeting, it is worth checking whether the employee has anything else they want to say, before the employer proceeds to make their decision.
After hearing all the evidence, the employer must then decide the appropriate sanction.
Can I deliver a decision in the disciplinary hearing, or must it be in writing?
The decision can be confirmed in the hearing, but we’d recommend adjourning the hearing to take the time to consider all the evidence. If you give the decision straightaway, you run the risk that it looks predetermined.
You can then either reconvene the meeting to give the decision to the employee or confirm it in writing. If you choose to tell the employee in a reconvened meeting, you must still write to them afterwards to confirm the decision. That letter should also explain that the employee has the right to appeal the decision. If they choose to appeal, it is usually best (where possible) for someone who has not already been involved in the investigation or disciplinary hearing to deal with the appeal hearing.
If you need to start disciplinary proceedings against a staff member, then it is imperative to ensure you follow a fair and consistent process. Failing to do so means you risk being taken to the Employment Tribunal, which will be costly for you even if you successfully defend the claim. We strongly recommend that you get in touch with our specialist employment law team should you have any disciplinary issues with an employee.
Nalders Solicitors has a dedicated employment law team who can provide legal advice and representation in employment matters. To speak to us, please phone our Truro office on 01872 241414.